Manak Mohta, J.
1. Heard learned Counsel for the parties in respect of application filed under Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator.
2. It is submitted by learned Counsel for the applicant that the applicant is a Society registered under the Societies Registration Act and a workcontract was awarded to the applicant-firm for 'Operation & Maintenance of Main Pump House No. 1 to 4 of Jaisamand Water Supply Project, Udaipur', for that, a written agreement (Annex.1) was executed between the parties on 31.01.1999 having Arbitration Clause 23 in it wherein it has been provided that in case any sort of dispute arises in respect of aforesaid contract or execution of work related to the said agreement, the matter will be resolved through arbitral proceedings. As per the original agreement, the work was to start from 31.01.1999 and was to be completed by 30.01.2000 but the same was extended and the applicant discharged its contractual obligation till 24.03.2001. It is submitted that in case time is extended, the increase in cost will be considered. It is also submitted by the learned Counsel for the applicant that as per Schedule-G appended with the contract agreement if the work contract continues after completion of extended period of one year, the contract rates were to be increased by 10% and on completion on extended period of 2 years, the same were to be increased by 21%.
3. It is further urged that under the said contract-in-question the applicant started the work on 31.01.1999 and continued and completed the same till 24.03.2001 and thereafter raised his running bill and final bill but for the reasons best known to the respondents, the legitimate dues of applicant were not paid despite exchange of series of correspondence between the parties, thus a dispute arose between the parties, as such, the applicant sent a registered notice dt. 29.05.2002 (Annex.2) under Section 80 C.P.C., upon which, the Department constituted a Pre-Litigation Committee, which in its meeting held on 26.05.2005 found that the applicant-contractor was entitled to receive the amount claimed, the Committee also recommended appropriate proceeding against the erring officials, however, when nothing was done, then the applicant vide his letters requested the concerned, to comply with the decision taken by the Committee, however, no heed was paid to the applicant, therefore, the applicant was compelled to sent a legal notice dt. 19.09.2006 (Annex.3) for referring the matter to arbitrator as per the provisions of arbitration agreement and offered to deposit the requisite money on demand. Vide said notice, the applicant made a demand of Rs. 7,88,188/- including interest @ 14% uptill 28.02.2002, but despite passage of reasonable time, the Department has not referred the matter to arbitrator for redressal of the applicant's grievance, hence, this application has been moved before this Court to appoint an independent arbitrator as per the provisions of the Act.
4. A reply to the arbitration application was submitted on behalf of respondents and during argument submissions were made. It is contended that at no point of time the Department had ever agreed to pay the enhanced rate. On the contrary, the Department sought consent of the applicant with clear stipulation that the extension could be considered on the existing rates as is in force on 31.01.2000, to which, the applicant gave his consent vide letter dt. 06.07.2000 and now the applicant cannot be permitted to take somersault. A further stand was taken that the Department cannot grant increased rates beyond the approved rates without prior approval of Finance Committee and the Finance Committee has accorded approval for extension of work to the applicant upto 31.01.2001. Thus, it is submitted that there is no referable dispute to be referred to the arbitrator. It is further contended that neither there is any contract to make the payment at the enhanced rate nor there is any legitimate right of the applicant to raise demand, as such, no claim of the applicant can be said to be alive or can be said to be legitimately due to be referred to arbitrator. It is further submitted that the applicant failed to submit or raise his grievance within the stipulated period of 30 days after the presentation of final bill and in the absence of the same, the subsequent grievance raised is of no avail. It is submitted that the applicant also filed writ petition but that was dismissed. Thus, a prayer is made to dismiss the application.
5. A rejoinder to the reply alongwith documents was filed by the applicant. The learned Counsel for the applicant drew my attention it during arguments.
6. I have perused the pleadings of the parties and considered the rival contentions advanced before me. I have gone also through the other material available on record.
7. After considering the contentions and from the bare perusal of the record, it is the admitted position between the parties that a work-contract for the aforesaid work was given to the applicant and an agreement was executed in this respect between the parties. Further, from the perusal of the material placed by the parties and the submissions made thereon, the applicant has raised his demand on the basis of 'G' Schedule and that has not been satisfied by the respondents. There are rival submissions in that respect and in this way, there exists dispute between the parties. Without expressing anything on the merit of the claim, the disputes are to be seen and adjudged by arbitrator as to whether the appellant is entitled to receive increased rates or not? Thus, there exists a dispute in relation to the said contract and for resolving that dispute, provision of arbitration Clause is there in the agreement itself, which is prima facie established and that has not been disputed but the respondent's side have not acted as per the terms of agreement, thus, an independent Arbitrator is required to be appointed to resolve the disputes between the parties. It is revealed from the record that the applicant made sincere and required efforts in this respect and offered to deposit processing fees and reasonable time has passed but no response was given in this respect and the respondents proceeded the claim on other points, thus, they have waived their right to claim processing fee and the right to appoint arbitrator. Further filing of writ petition and appeal thereafter would not effect the maintainability of the present application. In these circumstances, the applicant has moved this application, that is maintainable and the same deserves to be accepted.
8. In the net result, the application is allowed. Shri S.R. Sharma, Retired District & Sessions Judge is hereby appointed as the Sole Arbitrator to resolve the dispute between the parties. The parties are free to raise their dispute, claim, counter-claim etc., before the Arbitrator. It is further directed that the initial expenses of Rs. 5000/- shall be deposited by the applicant with the Arbitrator so that arbitral proceedings may start. The deposit of initial amount will be subject to final determination of fees. The fee of arbitrator and the cost of arbitration shall be determined by the Arbitrator himself and that shall be borne equally by both the parties. The Arbitrator may be informed accordingly. The application stands disposed of.